An Update Regarding Minimum Fines and the Charter Protection Against Cruel and Unusual Punishment
The Supreme Court of Canada (SCC) has declined to hear an appeal that would have focused on the question in what circumstances minimum fines for regulatory offences infringe the s.12 Charter protection against cruel and unusual punishment.
In Québec (Attorney General) v. Bédard, 2021 QCCA 377, the Québec Court of Appeal ruled that the individual defendant’s exposure to a minimum fine in excess of $10,000 on his conviction under the provincial Building Act did not infringe s.12. The Court found that deterrence, as the primary sentencing factor, justifies the minimum fine in order to ensure unlicensed contractors do not profit from their failure to obtain licensing, and, in addition, protects the public from incompetent and uninsured actors. The Court also found that convicted defendants do not face jail for their failure to pay and instead can obtain relief from payment through extensions of time to pay and payment through instalments. In the result, the minimum fine was not offensive to s.12 because it was not grossly disproportionate; that is, so excessive as to outrage standards of decency and be abhorrent or intolerable to society.
Although the SCC has previously decided s.12 related appeals dealing with minimum sentences, the context has been criminal wherein the primary sentencing factor is proportionality as opposed to deterrence. One exception was its 2020 decision in Québec (Attorney General) v. 9147-0732 Québec Inc. The context was the minimum fine on conviction for the very same offence in Bédard, but focused on whether the appellant defendant, as a corporation, was protected by s.12. The SCC ruled that, as an artificial construct, a corporation could not suffer the indignity against which s.12 was intended to safeguard and rejected the appeal. It did not consider the issue that would have been central to the appeal in Bédard.
In the result, the QCA decision in Bédard remains binding in Québec and of at least persuasive authority in Ontario and the other provinces and territories.